Desmond v Glackin

JurisdictionIreland
JudgeO'Hanlon J.
Judgment Date09 January 1992
Neutral Citation1992 WJSC-HC 191
Docket NumberNo. 288 J.R./1991
CourtHigh Court
Date09 January 1992
DESMOND v. GLACKIN
JUDICIAL REVIEW

BETWEEN

DERMOT DESMOND

AND

DEDEIR
APPLICANTS

AND

JOHN A. GLACKIN THE MINISTER FOR INDUSTRY AND COMMERCE IRELAND, AND THE ATTORNEY GENERAL
RESPONDENTS

1992 WJSC-HC 191

No. 288 J.R./1991

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Freedom of expression - Litigation - Criticism - Minister of State - Interview - Radio broadcast - Evidence in support of ex parte motion - Allegations that Minister had acted unlawfully - Right of reply - Whether breach of ~sub judice~ rule - (1991/288 JR - O'Hanlon J. - 9/1/92) - [1993] 3 I.R. 1 - [1992] ILRM 490

|Desmond v. Glackin|

CONTEMPT OF COURT

Litigation

Criticism - Minister of State - Interview - Radio broadcast - Evidence in support of ex parte motion - Allegations that Minister had acted unlawfully - Right of reply - Whether breach of ~sub judice~ rule - (1991/288 JR - O'Hanlon J. - 9/1/92)

|Desmond v. Glackin|

PRACTICE

Attachment

Contempt of court - Criminal contempt - Evidence - Freedom of expression - ~Sub judice~ rule - Recourse to Courts - Judicial review - Evidence of applicant - Comments of Minister of State - Comments on evidence and on interlocutory order of court - Subject of review being matter of public interest - Comments made before final judicial determination of issue - Constitution - Personal rights - Rules of the Superior Courts, 1986, order 44 - European Convention on Human Rights, 1950, article 10 - Constitution of Ireland, 1937, Article 40, s. 6 - (1991/288 JR - O'Hanlon J. - 9/1/92) - [1993] 3 I.R. 1 - [1992] ILRM 490

|Desmond v. Glackin|

Citations:

RSC O.44 r1

COMPANIES ACT 1990 S14

COMPANIES ACT 1990 S10(5)

CONSTITUTION ART 38

CONSTITUTION ART 40

RSC O.84

CENTRAL BANK ACT 1989 S16

DPP, STATE V WALSH 1981 IR 412

BORRIE & LOWE, THE LAW OF CONTEMPT 2ED 1983 P 60

AG (NSW) V JOHN FAIRFAX & SONS LTD 1980 1 NSWLR 362

CULLEN V TOIBIN & MAGILL PUBLICATIONS (HOLDINGS) LTD 1983 ILRM 577

R V DAVIES 1945 KB 435

DPP, PEOPLE V CONROY 1986 IR 460

AG V TIMES NEWSPAPERS LTD 1974 AC 273

READ & HUGGONSON (ST JAMES'S EVENING POST CASE) 1742 2 ATK 469

BREAD MANUFACTURERS LTD, EX PARTE 1937 37 SR (NSW) 242,

DAWSON, EX PARTE 1961 SR (NSW) 573

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10(2)

O LAIGHLEIS, IN RE 1960 IR 93

WALSH, STATE V DPP 1981 IR 412

COMPANIES ACT 1990 S10(5)

COMPANIES ACT 1990 S7

COMPANIES ACT 1990 S8

COMPANIES ACT 1990 S9

COMPANIES ACT 1990 S17

COMPANIES ACT 1990 S22

CENTRAL BANK ACT 1989 S16(2)(c)

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S4

CONTEMPT OF COURT: LAW REFORM COMMISSION CONSULTATION PAPER JULY 1991

AG V RYAN & BOYD 1946 IR 70

HAUGHEY, IN RE 1971 IR 217

MACARTHUR, IN RE 1983 ILRM 355

BYRNE V IRELAND 1972 IR 241

MACAULEY V AG 1966 IR 345

BULA V TARA MINES 1987 IR 85

QUINN, STATE V RYAN 1965 IR 132

HIBERNIA NATIONAL REVIEW, IN RE 1976 IR 388

R, AG V FREEMAN'S JOURNAL 1902 IR 82

DPP V MCMAHON 1986 IR 393

CURTIS V AG 1985 IR 458

AG V O'KELLY 1928 IR 327

WHELAN V RTE 1987 IR 662

R V GRAY 1900 2 QB 41

BLACKBURN, EX PARTE 1968 2 AER 319

CENTRAL BANK ACTS 1942–1989

1

Judgment delivered by O'Hanlon J., the 9th day of January, 1992

1. FACTUAL BACKGROUND TO THE APPLICATION
2

This is an application by the Applicants for an Order pursuant to Order 44 Rule 1 of the Rules of the Superior Courts that the second-named Respondent, the Minister for Industry and Commerce, Mr. Desmond O'Malley, be attached for contempt of Court. A similar application brought against the first-named Respondent has already been disposed of when the matter came on for hearing.

3

The background to the application to attach for contempt may be summarised in the following manner. It is linked with the acquisition by Telecom Eireann in the month of June, 1990, of the Johnston Mooney & O'Brien site in Ballsbridge, Dublin, which became the subject of considerable public controversy when it emerged that the property had changed hands for a sum of £4m. the previous year, whereas the consideration for the sale to Telecom Eireann was £9.4m.

4

A good deal of speculation arose as to the identity of the parties who had benefited by what appeared to have been a spectacular financial coup and as it was considered to be a matter of public concern, the Minister for Tourism, Transport and Communications on the 14th September 1991 initiated a formal inquiry into all matters connected with the purchase of the site by Telecom Eireann. The Committee of Inquiry met persons and representatives of parties who had been concerned in the two transactions and produced a lengthy interim report in the month of October, 1991.

5

While the Committee of Inquiry succeeded in producing a large amount of background information concerning the transactions within a short space of time, its findings as to the individuals who appeared to have benefited by the transactions were incomplete and inconclusive, as appears from the following paragraphs taken from the Report:

6

The interviews were productive and each of the parties appearing before the Inquiry agreed to provide the Inquiry with documents and correspondence relevant to the Inquiry.

7

On September 30th Mr. Noel Smyth advised the Inquiry that his retainer from Mr. Pat Doherty the claimed beneficial owner of Chestvale Properties Limited ("Chestvale") Hoddle Investments Limited ("Hoddle") and Delion Investment Dealings Limited ("Delion") had been terminated with effect from Sunday, September 29th, 1991. He stated that, because of his duty of confidentiality under the solicitor/client relationship, he was not able to provide the information on Chestvale, Hoddle and Delion which he had told the Inquiry, during an interview with the Inquiry, that he would present to the Inquiry after getting the consent of his principals. Mr. Smyth's letter was received while Mr. Pat Doherty was being interviewed by the Inquiry.

8

Mr. Brian Wallace of Hanby Wallace advised the Inquiry that he was advising Mr. Doherty and that he expected to provide the Inquiry with information on Chestvale, Delion and Hoddle on October 1st, 1991, subject to receiving the requisite information from the relevant sources. On Tuesday, October 1st, the Inquiry was informed that the requisite information had not been received by Hanby Wallace and they would not be in a position to respond to the Inquiry on that day. The information was not provided to the Inquiry by 6.00 p.m. on October 1st, 1991.

9

The Inquiry was surprised by the developments and felt that this action by Mr. Doherty and Chestvale, Delion and Hoddle could seriously delay the work of the Inquiry. The Inquiry concluded that these developments represented a serious set-back to the Inquiry and that it should, therefore, request the immediate appointment of an Inspector under the Companies Act, 1990.

10

The full interim report of the Committee of Inquiry is exhibited in an affidavit of the first-named Applicant, Mr. Dermot Desmond, sworn and filed on the 16th December, 1991, in the above-entitled proceedings for judicial review. The relief claimed includes a claim for an Order quashing the appointment of the first-named Respondent, Mr. Glackin, as an Inspector under the provisions of Section 14 of the Companies Act, 1990.

11

Acting on the recommendation of the Committee of Inquiry, the second-named Respondent appointed Mr. Glackin as an Inspector under the Act in respect of Chestvale Properties Limited and Hoddle Investments Limited on the 9th October, 1990. The purpose of the Warrant was "to determine the true persons who are or have been financially interested in the success or failure (real or apparent) of these Companies or able to control or materially to influence the policy of these Companies;" and, (as permitted under the Act), the investigation was to extend to an investigation of any circumstances suggesting the existence of an arrangement or understanding which, though not legally binding, was or was observed or likely to be observed in practice and which was relevant to the purposes of the investigation.

12

The purchaser of the site from the Liquidator of Johnston Mooney & O'Brien was United Property Holdings Limited ("UPH"), a company in which Mr. Desmond had a substantial interest, and the property after the purchase was completed became vested in Chestvale, a wholly-owned subsidiary of UPH, in or about the month of January 1990. Mr. Desmond was instrumental in negotiating the purchase of the site on behalf of UPH and the re-sale of the site to Telecom Eireann at a later stage. The transaction was carried through in a roundabout manner, involving a sale by UPH of its subsidiary, Chestvale, to Delion Investment Dealings Limited ("Delion") a company registered in Cyprus, in or about the month of April, 1990, apparently for a consideration of IR£2.75m in Ansbacher Bank guaranteed loan notes, due on the 16th August, 1994, Delion also taking over existing debts of Chestvale of an amount not ascertained. Delion sold on to Hoddle on the same day for £9.3m. and Hoddle sold to Telecom Eireann for £9.4m. on the 29th June, 1990.

13

Mr. Desmond informed the Committe of Inquiry, that he and his family had no interest, direct or indirect, in Delion or Hoddle. The agreement on the part of the vendors to sell the site to Telecom Eireann for £9.4m. was conveyed on their behalf by Mr. Desmond on the 9th January, 1990, and was accepted by Telecom Eireann on the 11th January, 1990.

14

Following upon the appointment of Mr. Glackin as Inspector under the Companies Act, Mr. Desmond was one of the persons from whom he sought information concerning the subject-matter of his investigation.

15

Mr. Desmond attended before the Inspector on the 11th and 12th November, 1991 and 5th and 6th December 1991, and claims to have responded to almost 2,000 questions addressed to him by the...

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